Recent BALCA decisions have not really touched on issues important to our clients meaningfully, but I also did not want to go too long without posting something new one here, so we’ll take an issue that is potentially relevant to a lot of employer’s in today’s economy.
The case involves an application filed by Thomas & Betts Corp. for a sales position where the person travels extensively in the US and internationally. The application listed the employee’s home address in Atlanta - as opposed to corporate HQ in Memphis - as the primary worksite. The DOL then misapplied its own previous guidance on “unanticipated worksites” (called the Farmer Memo) and said the application should be denied because the wrong address was listed.
The decision of the DOL officer was reversed on appeal, which I agree was the correct call. The employer went to great lengths to make sure everything was done properly here (newspaper ads in two major metro areas) and they did list the proper address since it was not so much an “unanticipated worksites” case as one where the incumbent could telecommute and work-from-home.
The key commentary in the decision, in my opinion, is:
While there may well be sound administrative reasons for requiring an employer to treat a position that allows an employee to work from home as having a worksite location at the employer’s headquarters for PWD and recruitment purposes, OFLC has not clearly or consistently notified employers of this requirement. As the Employer correctly notes, the guidance provided during the March 15, 2007 Stakeholder’s Meeting stated that in the case of a telecommuting position where the employee is not required to live in a location specific to the job, the worksite is the employee’s home, and the PWD and recruitment would be for the worksite, not the employer’s headquarters . . . Since nothing in the PERM regulations or in any guidance adequately notified employers of a requirement that an employer must use its headquarters as the worksite location for job opportunities that offer the employee the unrestricted opportunity to work from a home location, we conclude that the CO erred by enforcing such a requirement on the unsuspecting Employer. See Infosys Ltd., 2016-PER-00074, slip op. at 11 (May 12, 2016).
We originally published this blog here: https://www.permlabor.com/blog/work-from-home-arrangements